Upper House of Congress Now Controlled by Minority Veto, Brief Asserts

The U.S. Senate's 60-vote filibuster rule has transformed a once-revered legislative body into one controlled by "a minority veto. specifically rejected by the (Constitution's) framers," Common Cause asserted in a legal brief filed today.

The non-profit government watchdog told the U.S. Court of Appeals for the District of Columbia that Senate lawyers are mistaken in claiming that the filibuster rule is immune to court oversight. The Senate has exclusive authority to make its own rules, but those rules must meet the Constitution's requirement that a simple majority vote is sufficient for most Senate action, the brief asserts.

Common Cause is appealing a lower court ruling last December dismissing its lawsuit challenging the filibuster. Other plaintiffs include Reps. John Lewis and Hank Johnson, both D-GA, Michael Michaud, D-ME, and Keith Ellison, D-MN, along with three people - Erika Andiola, Ceslo Mireles, and Caesar Vargas - whose opportunity to become American citizens has been blocked by a Senate filibuster of the DREAM Act.

All the plaintiffs are being represented by Atlanta attorney Emmet J. Bondurant, a member of Common Cause's national governing board. No date for a hearing has been set.

The 41-page brief filed today argues that thanks to the filibuster rule "No bill (with limited exceptions) can be debated or passed by the Senate and no nominee can be confirmed without 60 votes." That's nine votes more than the simple majority of 51 that the Constitution's framers expected would be necessary, Common Cause contends.

The Constitution mentions only a handful of circumstances in which a super-majority is required for action. Conviction of the President or a federal judge in an impeachment trial, for example, requires a two-thirds majority of senators - now 67 votes - and ratification of a constitutional amendment requires approval by three-fourths - 37 - of the 50 state legislatures.

Common Cause said that if courts embrace claims that Senate rules are immune from judicial review, a future Senate could decide that 75, 80 or even 100 votes are required to pass bills or confirm the President's nominees for judgeships, ambassadorships, and cabinet offices.

Today's filing comes amid an ongoing debate among senators about the filibuster. Republicans, currently the Senate's minority party, have dramatically increased their use of the rule, staging 385 filibusters from 2006-12, according to Fix the Senate Now, a coalition of groups working to reform the rule. That's nearly double the 201 filibusters recorded from 2000-06.

Senate Majority Leader Harry Reid has warned that Democrats may invoke a "nuclear option" to change the rule and end filibusters with a simple majority of 51 votes. A bi-partisan agreement last month averted a showdown, as Republicans agreed to move forward with confirmation votes for several of President Obama's nominees for key administration posts.

Common Cause is a nonpartisan grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empower all people to make their voices heard in the political process.